The ACMA

Service provider obligations

This guide provides existing and new service providers with information about the government's telecommunications policy framework and the range of obligations on service providers under the Telecommunications Act 1997 (the Act), the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the TCPSS Act) and Chapter 5 of the Telecommunications (Interception and Access) Act 1979 (the TIA Act). The ACMA is responsible for regulating telecommunications in accordance with the Act.

The regulatory framework under the Act differentiates between service providers and carriers in terms of their legislative rights and obligations. The Guide to Carrier Licence and Nominated Carrier Declarationprovides information about carrier licensing and the obligations on carriers under the Act.

The policies and laws of the Commonwealth may change from time to time. This guide provides advice on the range of legislative obligations relevant to service providers currently operating in Australia. Nothing in this guide should be taken to bind the ACMA to any particular course of action in relation to the regulation of the telecommunications industry. It is recommended that service providers also make their own enquiries as to the obligations that are imposed on them under the Act.

Expressions used in this guide are intended to have the same meaning as in the Act.

Policy framework

The main object of the Act is to provide for a regulatory framework that promotes the long-term interests of end users of carriage services or services supplied by means of carriage services and the efficiency and international competitiveness of the Australian telecommunications industry. It is Parliament's intention that this framework will allow telecommunications to be regulated in a manner that promotes industry self-regulation and does not impose undue financial or administrative burdens on participants in the industry or compromise the effectiveness of regulation in achieving the objects of the Act.

The Act applies to both carriage service providers and content service providers. Carriage service providers are persons who supply carriage services to the public using carrier network infrastructure. Content service providers are persons who use carrier network infrastructure to supply content services to the public. Neither carriage nor content service providers are required to obtain a licence from the ACMA in order to be able to supply carriage or content services respectively to the public.

Both carriage and content service providers are able to benefit from rights of access that are accorded to service providers under Part XIC of the Competition and Consumer Act 2010. It should be noted that the Act does not seek to impose substantial legislative obligations on content service providers as content will continue to be regulated under other legislation such as the Broadcasting Services Act 1992.

Carriers who supply carriage or content services to the public are also considered to be service providers and are, therefore, subject to relevant service provider regulation under the Act and the Competition and Consumer Act 2010. However, there may be circumstances where a carrier owns infrastructure but does not itself supply carriage or content services to the public. Obligations under the Act are specifically and separately imposed on both carriers and service providers to avoid any such potential regulatory gaps.

In addition to complying with any obligations under the Act, a carrier or service provider that operates radiocommunications equipment for the purpose of supplying carriage or content services may also need to be licensed under the Radiocommunications Act 1992. The ACMA's Radiocommunications Licence issue and allocation section is responsible for licensing persons to operate radiocommunications equipment.

Key concepts of the regulatory framework

The following concepts are central to determining whether a person is a service provider for the purposes of the Act. A service provider is defined in section 86 of the Act as a carriage service provider or content service provider.

Carriage service provider

A carriage service provider is defined in section 87 of the Act to include:

a person who supplies, or proposes to supply, a listed carriage service to the public using a network unit owned by one or more carriers or a network unit in relation to which a nominated carrier declaration is in force

a person who supplies, or proposes to supply, a listed carriage service to the public using a line link connecting places inside and outside Australia or a satellite-based facility

a person who is declared by the Minister for Communicationsand the Arts (the Minister) to be a carriage service provider for the purposes of the Act and

a person:

who receives a reward (other than remuneration as an employee) for arranging the supply of a listed carriage service by a carriage service provider to a third person

who would be a carriage service provider if the person had supplied that carriage service and

who has a commercial relationship with the third person which is governed by an agreement relating to the continuing supply of the service. (Such a person is known as a carriage service intermediary.)

Paragraph (iv) is intended to capture switchless resellers and/or aggregators who may not themselves be supplying a listed carriage service.

Content service provider

Section 97 defines a content service provider as a person who uses or proposes to use a listed carriage service to supply a content service to the public.

Carriage service

A carriage service is defined under section 7 of the Act to mean a service for carrying communications by means of guided and/or unguided electromagnetic energy. The term communications includes any communication, whether between persons and/or things, and whether in the form of speech, music or other sounds, data, text, visual images, signals or any other form.

Listed carriage service

A listed carriage service is defined under section 16 of the Act to mean a carriage service between points inside and/or outside Australia.

Content service

A content service is defined under section 15 of the Act as:

a broadcasting service (as defined in the Broadcasting Services Act 1992 (for example, television and radio services))

an on-line service (including those for information and entertainment) and

a service specified in a written determination made by the Minister.

Supply to the public

Section 88 of the Act provides that a carriage service is supplied to the public if the service is used to:

carry communications between two end-users, both of whom are outside the immediate circle of the supplier of the service or

supply point-to-multipoint or designated content services to end-users, at least one of whom is outside the immediate circle of the supplier of the service.

Under section 97 of the Act a content service is supplied to the public if at least one end-user of the service is outside the immediate circle of the supplier of the service.

Immediate circle

Under section 23 of the Act, a person's immediate circle consists of the person, together with the following persons:

if the person is an individual or partnership—employees of the individual or partnership

if the person is a body corporate—an officer of the body corporate, a related body corporate and officers of the related body corporate (within the meaning of the Corporations Law).

Special provisions apply if the person is a Commonwealth, state or territory government department, body, or business enterprise, or a tertiary education institution.

The minister has made a determination that extends a person's immediate circle in relation to specified joint ventures and independent contractors.

Network unit

The concept of a network unit is described in Division 2 of Part 2 of the Act in terms of the following four categories:

Category 1—single line links connecting distinct places in Australia

A single line link connecting distinct places within Australia that are at least 500 metres apart.

Category 2—multiple links connecting distinct places in Australia

Two or more line links owned by the same person or persons that connect distinct places in Australia and the aggregate of the distances between the places is more than five kilometres.

A line will not form part of a line link or a network unit to the extent that the line is on the customer side of the network boundary.

Category 3—designated radiocommunications facility

A designated radiocommunications facility used to supply a carriage service between points in Australia regardless of whether the supply involves the use of a satellite, line or other facility outside Australia. A designated radiocommunications facility is defined to include the following kinds of facility:

a base station used to supply a public mobile telecommunications service

a base station that is part of a terrestrial radiocommunications customer access network

a fixed radiocommunications link used to carry communications which have the characteristic of double-ended interconnection

a satellite-based facility

a radiocommunications transmitter or receiver specified in a ministerial determination.

Category 4—facilities specified in a ministerial determination

Any specified facility determined by the minister to be a network unit for the purposes of the Act.

Exemptions

Exemptions from the carriage service provider definition apply where the carriage service is used for purposes relating to defence, intelligence operations, transport, broadcasting and electricity supply. A special exemption is provided under section 89 of the Act for a supplier of a carriage service who manages a business or other activity carried out at particular premises, where the business or activity is the sole or principal use of the premises and all the customers of the service are physically present on the premises. This provision is intended to exempt hotels, motels, hospitals, nursing homes and similar organisations from being included in the carriage service provider definition even though they may, during the normal course of their business, be supplying carriage services to the public.

Under section 95 of the Act, the minister may also exempt specified carriage services or persons from the carriage service provider definition on either a conditional or unconditional basis.

Legislative obligations on service providers

The Act primarily creates obligations that apply to carriage service providers. The key regulatory obligations that apply to service providers are summarised below.

Service providers who breach the Act may be subject to pecuniary penalties of up to $10 million per offence, as specified in Part 31 of the Act. Under sections 102 and 103 of the Act, the ACMA may issue respectively a direction to ensure that a service provider does not breach the Act and a formal warning if a person breaches the Act. A service provider must not contravene a direction issued by the ACMA.

Standard service provider obligations

Service providers are required to comply with the standard service provider rules set out in Schedule 2 of the Act. These rules primarily impose obligations upon carriage service providers as opposed to content service providers. The standard service provider rules set out in Schedule 2 of the Act include the following:

Compliance with the Act—service providers must comply with the Act.

Operator services —a carriage service provider who supplies a standard telephone service must make operator services available to each end user either by providing the services itself or by arranging for a third person to provide the services. A carriage service provider who provides operator services to end users of its standard telephone service must enter into an agreement to provide operator services to end users of another carriage service provider if requested by the other provider, on such terms and conditions as are agreed between the parties, or failing agreement, as are determined by an arbitrator appointed by the parties. If the parties fail to agree on the appointment of an arbitrator, then the Australian Competition and Consumer Commission (ACCC) is to be the arbitrator.

Directory assistance services —a carriage service provider who supplies a standard telephone service must make directory assistance services available to each end user either by providing the services itself or by arranging for a third person to provide the services. A carriage service provider who provides directory assistance services to end users of its standard telephone service must enter into an agreement to provide directory assistance services to end users of another carriage service provider if requested by the other provider, on such terms and conditions as are agreed between the parties, or failing agreement, as are determined by an arbitrator appointed by the parties. If the parties fail to agree on the appointment of an arbitrator, then the ACCC is to be the arbitrator.

Integrated public number database (IPND) — The IPND is an industry-wide database containing all listed and unlisted public telephone numbers. The IPND serves as a repository of public number customer data, which broadly includes the public number, the customer name and address information that can be used, for example, to help provide emergency services and law enforcement. A carriage service provider who supplies carriage services to end users with a public number must give any information reasonably required by Telstra as the IPND Manager for the provision and maintenance of an IPND. Carriage service providers are required to register with the IPND Manager as data providers before they can start providing public number customer data. The IPND Code and IPND Guideline published by Communications Alliance are designed to help data providers provide accurate data to the IPND. They set out the detailed obligations for data provision, including important reference to the IPND Technical Requirements published by the IPND Manager.

Itemised billing — a carriage service provider who supplies a standard telephone service must provide itemised billing for each of its customers for calls made using the service. This requirement does not apply to untimed local calls. Itemised billing means provision of a bill that contains the date, duration and charge for each call and the number to which the call was made, or details determined by the ACMA. The ACMA may exempt a specified carriage service provider from the requirement to provide itemised billing for particular customers. This is intended to cover carriage service providers who do not have the technical capability to provide itemised billing for certain customers.

Under section 99 of the Act, the ACMA may make a written determination setting out additional rules that apply to service providers in relation to the supply of specified carriage or content services. The ACMA has made the Telecommunications (Service Provider – Identity Checks for Prepaid Mobile Carriage Services) Determination 2013 (the Prepaid Determination). Under the Prepaid Determination, a carriage service provider that supplies a prepaid mobile carriage service must not activate the service unless the carriage service provider has obtained certain identifying information from the customer and appropriately verified the identity of the customer. Other requirements under the Prepaid Determination include those for keeping records and the restrictions placed on recording and copying certain information and the use of numbers.

The ACMA has also made the Telecommunications (Backup Power and Informed Decisions) Service Provider Determination 2014, which requires retail carriage service providers supplying voice telephony services over a fibre-to-the-premises connection to obtain the informed consent of residential customers regarding the installation of backup power supply (backup battery) capability, and to keep appropriate records of that customer consent for a specified period.

In addition to the rules mentioned above, service providers are also required to comply with the rule set out in subsection 152BA (2) of the Competition and Consumer Act 2010, which relates to compliance with any applicable standard access obligations.

Industry codes and standards (Part 6 of the Act)

The Act specifies a framework for industry self-regulation through industry developed codes that may be registered with the ACMA. Compliance with an industry code is voluntary unless the ACMA directs a particular participant in the telecommunications industry to comply with the code. Industry codes are developed by working groups of industry representatives under the auspices of the Communications Alliance Ltd (CA). Any organisation or individual can become a member of CA, including carriers, carriage service providers, equipment vendors, industry associations and user/consumer groups. The ACMA has a reserve power to make an industry standard if there is no industry code in a particular area or if an industry code is deficient. Compliance with an industry standard is mandatory.

Continued access to untimed local calls (Part 4 of the TCPSS Act)

This Part requires carriage service providers who charge customers for local calls made using a standard telephone service to provide:

residential/charity customers with access to untimed local calls for both voice and data calls

other customers with access to untimed local calls for voice

where they had access to such calls immediately before 20 September 1996.

It does not require carriage service providers who offer other standard telephone services (eg long-distance calls) but not local calls to commence offering local calls. However, where a customer is supplied with a standard telephone service by the relevant universal service provider the obligation to provide untimed local calls may apply. This ensures that customers continue to have access to local calls which are untimed.

Customer Service Guarantee (Part 5 of the TCPSS Act)

Carriage service providers that supply the standard telephone services are required to comply with the Telecommunications (Customer Service Guarantee) Standard 2011 (CSG Standard). The CSG Standard covers the supply of the standard telephone service and enhanced call handling features, such as call waiting, call forwarding, call barring, calling number display and calling number display blocking. The Standard does not apply to mobile services, customer equipment or Internet services. The CSG Standard specifies minimum performance that carriage service providers are required to meet in relation to the making of arrangements with customers for connection and fault rectification, the period taken to connect or rectify a fault or service difficulty, and the keeping of appointments to make such connections and rectifications. If a carriage service provider contravenes the CSG Standard, it is liable to pay compensation to the customer. The compensation will vary according to the type of service and length of the delay in meeting the service requirements.

This Part requires entry into and compliance with the Telecommunications Industry Ombudsman (TIO) scheme by carriage service providers which supply or arrange for the supply of:

the standard telephone service to residential or small business customers

a public mobile telecommunications service

a carriage service which enables end-users to access the internet.

A public register of all members of the scheme is kept by the TIO. The ACMA has the power to declare that a specified carriage service provider is exempt from the requirement to join the scheme, and if necessary, direct specified carriage service providers to enter the scheme.

Emergency service arrangements (Part 8 of the TCPSS Act)

Under the Act, the ACMA can determine arrangements for the provision of direct access by end users, free of charge, to emergency call services and ancillary arrangements for emergency call handling. This is achieved through the Telecommunications (Emergency Call Service) Determination 2009(the ECS Determination).

Under the ECS Determination, carriage service providers are required to provide free access to the emergency call service from fixed and mobile telephone services (including VoIP services). The emergency call service is an operator-assisted service that connects callers to police, fire or ambulance services in life-threatening or time-critical situations.

The ECS Determination requires CSPs to deliver calls made to the emergency service numbers Triple Zero (000) and 112 to the relevant termination points, with the highest priority. CSPs must also provide the IPND Manager with name, address and service location information for each of their customers, and they must keep this information up-to-date.

Protection of communications (Part 13 of the Act)

Under Part 13 carriers and carriage service providers are prohibited from using or disclosing any information which comes into their possession in the course of their business and which relates to:

the contents of communications that are being or have been carried by carriers or carriage service providers

carriage services supplied by carriers or carriage service providers

the affairs or personal particulars of other persons.

Part 13 sets out a number of exceptions to this prohibition that relate to:

the performance of a person's duties as an employee

authorisation by or under law

witnesses, law enforcement, protection of public revenue and ASIO

assisting the ACMA, ACCC and TIO

IPND

a threat to a person's life or health

knowledge or consent of the person concerned and implicit consent of the sender and recipient

business needs of other carriers or service providers.

Sections 306 and 306A of the Act required that carriers and carriage service providers must keep records of disclosures made under specific exceptions. Carriers and carriage service providers must also lodge a report with the ACMA within two months of the end of each financial year which contains details of the number of disclosures made. A copy of the section 308 report form for reporting disclosures is available here but only between 1 July and 31 August.

National interest (Part 14 of the Act)

Carriage service providers are required to:

do their best to prevent telecommunications networks and facilities from being used to commit offences

give Commonwealth, state and territory authorities such help as is reasonably necessary for the purposes of law enforcement, protecting the public revenue and safeguarding national security.

Giving assistance to Commonwealth, state and territory authorities can take many forms, but most commonly involves providing information regarding consumers of telecommunications services and their communications for the purposes of:

enforcing the criminal law

enforcing laws that impose a pecuniary penalty

assisting the enforcement of the criminal laws in force in a foreign country

protecting the public revenue

safeguarding national security

Carriage service providers may charge at cost recovery prices for any help given for these purposes.

A carriage service provider may suspend the supply of a carriage service in an emergency if requested to do so by a senior police officer.

Law enforcement (Chapter 5 of the Telecommunications (Interception and Access) Act 1979 as amended)

Interception

Carriers and nominated carriage service providers must ensure that telecommunications networks and facilities they operate have the interception capability to enable a communication passing over the networks or facilities to be intercepted in accordance with a warrant issued under the Telecommunications (Interception and Access) Act 1979https://www.comlaw.gov.au/Series/C2004A02124(the TIA Act). Carriers and nominated carriage service providers must provide this interception capability at their own cost. The minister may grant an exemption from compliance with this requirement in certain circumstances.

All carriers and certain nominated CSPs are also required to submit an annual Interception Capability Plan to the Communications Access Co-ordinator (CAC) outlining its policies for interception and their strategies for complying with their obligations. The CAC is an officer of the Attorney-General’s Department, as outlined in section 6R of the TIA Act. The CAC acts on behalf of Australia’s national security and enforcement agencies.

Data Retention

From 13 October 2015, carriers and CSPs that use communications infrastructure in Australia to provide any of their services may be required to retain and secure specific telecommunications data for two years. Some services are specifically excluded, for example, broadcasting services.

Service providers must begin retaining the required data for each relevant service they provide from that date, unless they are acting under an approved Data Retention Implementation Plan and/or have a relevant exemption from and/or variation of their obligations.

Service providers may submit a Data Retention Implementation Plan to the CAC to request more time to develop capability to meet their data retention obligations. If the Data Retention Implementation Plan is approved, carriers and CSPs can use the additional time to develop data retention systems. The last day which a carrier or CSP may still operate under an approved Data Retention Implementation Plan is 12 April 2017.

Defence requirements and disaster plans (Part 16 of the Act)

A carriage service provider may be required to supply a carriage service for defence purposes or for the management of natural disasters. A carriage service provider may also be required to enter into an agreement with the Commonwealth about planning for network survivability or operational requirements in times of crisis. Compliance with a disaster plan may be the subject of a service provider rule determined by the ACMA.

Technical regulation of customer equipment and customer cabling (Part 21 of the Act)

Part 21 of the Act sets out arrangements for technical regulation of telecommunications customer equipment and customer cabling in Australia. The ACMA may make technical standards in relation to specified customer equipment and customer cabling that is connected to telecommunications networks or facilities, and to require such equipment and cabling to be labelled. The ACMA’s technical standards are listed on the ACMA website. The ACMA technical standards typically reference industry standards published by either Communications Alliance or Standards Australia. Copies of the industry technical standards are either available from Standards Australia or Communications Alliance Ltd.

Under section 412 of the Telecommunications Act, the manager of a network or facility must (subject to exception circumstances) permit connection of correctly labelled equipment or cabling to the network or facility. A person must not connect unlabelled or non-compliant customer equipment or customer cabling to a telecommunications network or facility without the permission of the network operator.

Numbering (Part 22 of the Act)

Carriage service providers are required to comply with theTelecommunications Numbering Plan 2015 (the Numbering Plan) made by the ACA under Part 22 of the Act. The Numbering Plan contains rules regarding the numbering of carriage services in Australia, the use of numbers in connection with the supply of such services and number portability. Carriage service providers may apply to the ACMA’s delegate for the allocation of numbers and must also provide number portability in accordance with the Numbering Plan.

Standard agreements (Part 23)

Part 23 enables carriage service providers to develop standard forms of agreement and to rely on the terms and conditions contained in these standard forms when supplying the standard telephone service and any other goods or services which are specified in the regulations. Under the Telecommunications Consumer Protections Code (C628:2012), carriage service providers must ensure that their standard forms of agreement are made available on the supplier's website and also requires the agreement to be in plain language, and to be clear and consistent.

Obligations to promote competition

Competition regulation of the telecommunications industry is largely achieved through the Competition and Consumer Act 2010. Parts XIB and XIC of the Competition and Consumer Act set up rules for regulating anti-competitive conduct in the telecommunications industry and facilitating access to carriage services. In addition to the role of the Competition and Consumer Act in competition regulation, the Act also imposes the following conditions on carriage service providers in order to promote competition in the supply of carriage services.

Pre-selection in favour of carriage service providers (Part 17 of the Act)

Carriers and carriage service providers must comply with any ACMA pre-selection determinations. The ACMA has made the Telecommunications (Provision of Pre-selection) Determination 2015. The Determination requires telecommunications networks and facilities operated by a carrier or carriage service provider to permit an end-user to:

pre-select another carriage service provider as the end-user's preferred carriage service provider for specified national and international calls, operator assisted services and calls to mobile telephones

change the selection from time to time by written request.

Such networks and facilities must also provide over-ride dial codes for selecting alternative carriage service providers for pre-selectable calls on a call-by-call basis.

From June 2012, carriers and carriage service providers are not required to offer pre-selection on wireless services, particularly on interim wireless services in new developments pending the rollout of fixed-line infrastructure. Pre-selection is not required for services provided over the National Broadband Network.

Pre-selection is still required for services supplied on the copper network and on fibre networks where the network operator also provides retail services.

Calling line identification (CLI) (Part 18 of the Act)

Carriage service providers are required to take all reasonable steps to ensure that a facility they operate is capable of providing calling line identification where the facility consists of:

a switching system used in connection with the supply of a standard telephone service

a switching system of a kind specified in an ACMA determination

installed on or after 1 July 1997 or capable of providing CLI immediately before 1 July 1997.

The ACMA may declare that a specified person is exempt from this requirement.

International issues (Part 20 of the Act)

The minister has the power to give written directions to a carriage service provider that has been designated by the Commonwealth as an Australian Signatory to the international satellite consortia, INTELSAT and Inmarsat. The minister may also declare that specified conventions are binding in relation to carriage service providers which are members of a specified class of persons.

The Act recognises the potential for telecommunications businesses based in other countries to take unfair advantage of Australia's liberal market. The minister has the power to make rules of conduct about dealings by carriage service providers with international telecommunications operators.

Information disclosure

Part 27 of the Act provides that the ACMA may by written notice require a service provider or any other person to give information or to produce a document if the ACMA has reason to believe that the person has information or a document that is relevant to the performance of the ACMA's telecommunications functions or the exercise of any of the ACMA's telecommunications powers. It is an offence for a person to intentionally or recklessly give false or misleading information to the ACMA.

The ACMA may also make rules requiring specified carriage service providers to keep and retain records. Carriage service providers must comply with any such record-keeping rules that are applicable.

Reviewable decisions of the ACMA

Part 29 of the Act provides that certain ACMA decisions may be reviewed by the Administrative Appeals Tribunal following a process of internal reconsideration by the ACMA. A list of the decisions that can be the subject of reconsideration by the ACMA are set out in Schedule 4, Part 1 of the Act, including a decision by the ACMA to give a direction to a service provider under section 102 of the Act.

Information

Further information about the obligations on carriers or carriage service providers under the Act may be obtained from:

National and Community Interests Section, Australian Communications and Media Authority, PO Box 13112, Law Courts, MELBOURNE VIC 8010